Kallop v Federated States of Micronesia [1989] FMSC 22; 4 FSM Intrm. 170 (App. 1989) (1 November 1989)

[1989] FMSC 22; 4 FSM Intrm. 170 (App. 1989)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

FSM APPEAL CASE NO. P6-1988
(From Crim. Case No. 1988-543)

SEBASTIAN KALLOP

Appellant

V

FEDERATED STATES OF MICRONESIA

Appellee

BEFORE:
The Honorable Richard H. Benson, Associate Justice, FSM Supreme Court;
The Honorable Judah Johnny, Temporary Justice, FSM Supreme Court*;
The Honorable Frederick O'Brien, Temporary Justice, FSM Supreme Court**
* Associate Justice, Pohnpei Supreme Court
**Associate Justice pro tem, Supreme Court of Palau

APPEARANCES: For the Appellant: Michael K. Powell, Chief Public Defender; For the Appellee: Randy Boyer, State Attorney, Office of the Attorney General

OPINION: Argued: April 26, 1989 - Decided: November 1, 1989

HEADNOTES

Criminal Law and Procedure - Controlled Substances
The Trust Territory Controlled Substance Act is based on the United States Uniform Controlled Substance Act, therefore United States Cases construing the law are examined because it is presumed that the law adopted from the U.S. will be given the same construction in the FSM. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 174 (App. 1989).

Criminal Law and Procedure - Controlled Substances
Because the legislative intent in defining cannabis sativa L. in 11 F.S.M.C. 1112(14) was to embrace all species of marijuana, the government need not prove a defendant guilty of dealing in cannabis sativa L., but only in marijuana. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 174 (App. 1989).

Criminal Law and Procedure - Controlled Substances
A trial court may properly infer from the quantity of marijuana possessed that the requisite intent existed to support a conviction of trafficking. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 177 (App. 1989).

Criminal Law and Procedure - Identification
Where two government witnesses testified that they knew the defendant and the witnesses were policemen who participated in the search of the defendant's property in the defendant's presence, the trial court was justified in reaching the finding, beyond a reasonable doubt, that the defendant was the one who committed the crime even though there was no in-court identification or description of the defendant. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 177 (App. 1989).

Criminal Law and Procedure - Sentencing
The sentencing judge has authority to make a broad inquiry into the background of a defendant; specifically, the court may consider even cases in which the defendant was accused but not convicted. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 178 (App. 1989).

Criminal Law and Procedure - Sentencing
A sentencing judge may properly consider factors which would show trafficking of a controlled substance in a previous case, even though in the earlier case the defendant had pled guilty to possession and the trafficking charge had been dismissed. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 178 (App. 1989).

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

PROCEDURAL HISTORY

The defendant appeals his conviction of the crime of trafficking in marijuana.

ISSUES

The issues raised by this appeal are as follows:

whether there is a failure of proof in a prosecution for trafficking in marijuana if, at trial, there is no evidence identifying the marijuana as cannabis sativa L. and the statute defines marijuana as all parts of the plant cannabis sativa L;

whether one can be convicted for trafficking in a case in which the court found guilt because the defendant's possession of more than 2.2 pounds of marijuana provided a presumption of trafficking and because the quantity possessed justified an inference that the defendant intended to deliver the marijuana;

whether there is a sufficient identification of the defendant to support conviction where the witnesses state that they "know the defendant Sebastian Kallop"; and

whether the sentencing judge impermissibly considered certain matters.

HOLDING

We resolve all issues against the defendant and affirm the conviction.

FACTS

Pursuant to a warrant police on June 14, 1988 searched the property of the defendant and seized 1,429 marijuana plants ranging in height from 3 feet to 6 feet, seeds, dried leaves and seedlings. He was convicted of trafficking after a trial. Witnesses for the government were two policeman who had participated in the search and seizure, and one policemen who was the evidence custodian.

Samples from the seized plants were analyzed on Guam. That laboratory's finding that the substance was marijuana was admitted by stipulation. There was no testimony that the plants were or were not cannabis sativa L.

Each of the two policemen who participated in the search and seizure testified that he knew "the defendant Sebastian Kallop."

At sentencing the government was permitted over objection to offer testimony of a 1980 conviction for possession of marijuana. The defendant was in that case accused of both possession and trafficking, but pursuant to the plea agreement the defendant had pled guilty only to possession of more than 2.2 lbs. of marijuana. The testimony at the sentencing in this case was to the effect that the quantity possessed (over 2.2 pounds) and the trade of a radio for marijuana indicated trafficking in the 1980 case.

The presentence report stated that the defendant had left his employment as a school teacher in 1983 to become a full time farmer. This statement was undisputed. At sentencing the trial judge said that this "suggests that your work now is that of a farmer, and it suggests that what you're farming is marijuana."

The government represented that a second 1980 case involving marijuana had been filed. The case had been dismissed, with no reason given. There is no showing in the record that the court used this case as an aggravating factor in sentencing.

The maximum confinement permissible for trafficking marijuana is 5 years. The defendant was imprisoned for 1 year, with 6 months suspended in the event that the defendant paid a fine of $1,500.00 within the first 6 months of his imprisonment.

REASONING

1. Cannabis Sativa L. The defendant was convicted of violating 11 F.S.M.C. 1141(1), which makes it unlawful to knowingly or intentionally manufacture, deliver or possess with intent to manufacture, deliver or dispense, a controlled substance. The controlled substances are named in a series of schedules. Marijuana appears on schedule I. 11 F.S.M.C. 1119(3)(m). Marijuana is defined in 11 F.S.M.C. 1112(14). It states, " 'Marijuana' means all parts of the plant cannabis sativa L. . ."

The defendant contends that there is a failure of proof since no evidence was presented identifying the marijuana as cannabis sativa L. He contends that since Congress specified one species, there must be proof presented by the government that the seized substance was cannabis sativa L. The defendant represents that there exist other species of marijuana -- cannabis indica and cannabis ruderalis.

The statute under which this case is brought is entitled "Trust Territory Controlled Substance Act." 11 F.S.M.C. 1111. It is based on the "Uniform Controlled Substance Act." SCREP No. 322, House J. of 5th Cong., 1st Spec. Sess. 186-192 (1974). The report stated that the Uniform Act had been adopted "by over thirty-three states and the Territory of Guam." The aim of the law was to achieve uniformity between the laws of the several states of the United States and the laws of the United States. People v. Riddle, 65 Mich. App. 433, 237 N.W.2d 491, 493 (1975) (quoting Handbook of the National Conference of Commissioner on Uniform State Laws 223).

United States cases construing the law are examined because it is presumed that the law adopted from the U.S. will to be given the same construction as in the U.S. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984).

The defendant has given no appellate authority for his proposition that evidence that the marijuana is cannabis sativa L. is an element of the offense. Every appellate decision brought to the court's attention is contrary to his assertion.

It is consistently held that the legislative intent in defining cannabis sativa L. was to embrace all marijuana. In United States v. Honneus, [1975] USCA1 106; 508 F.2d 566 (1st Cir. 1974) the defendant contended that the government failed to prove him guilty of dealing in cannabis sativa L. The record showed he had dealt in marijuana. The court rejected the contention and affirmed his conviction. In United States v. Moore, [1971] USCA3 412; 446 F.2d 448 (3d Cir. 1971) the defendant made a similar argument. The government expert who identified the marijuana said that he could not tell the difference between cannabis sativa L. and cannabis indica. The court rejected the argument.

2. Weight of marijuana as providing a presumption or an inference supporting guilt. As stated in the foregoing section, the defendant was convicted under a statute making it unlawful to knowingly or intentionally manufacture, deliver or possess with intent to manufacture, deliver or dispense, a controlled substance. 11 F.S.M.C. 1141(1). The code section is entitled "trafficking".

The next section is entitled "possession." 11 F.S.M.C. 1142. Paragraph 3(c) of the section reads:

“Any person possessing two and two-tenths pounds or more of marijuana shall be sentenced to a term of not more than one year, a fine of not more than $1,000, or both. The possession of two and two-tenths pounds or more of marijuana by any person shall constitute a rebuttable presumption of the crime of trafficking under subsection (2)(b) of section 1141 of this chapter.”

The trial court found the defendant guilty of trafficking. He based the conviction on alternate findings: (1) the statutory presumption of quantity, with no rebutting testimony, required a finding of trafficking; and (2) an inference from the quantity possessed establishes that the defendant intended to traffic.

The defendant makes several contentions as to the first basis for the conviction:

1. The existence of the presumption establishes the crime of trafficking, not just an element thereof;

2. The trial court's finding indicates that the court felt it was required to apply the presumption; and

3. The presumption unlawfully shifts the burden of proof to the defendant.

The questions are not frivolous. Perhaps they will be faced in a future case. For now we do not need to decide them in view of the alternative independent basis found by the court.

The trial court, as stated, inferred from the quantity that the requisite intent to traffic existed. This inference differs from the statutory presumption in that only the existence of one element was inferred -- the element of intent -- and because this inference was permissive. Thus, it did not require a presumption of the crime itself, or shift the burden of proof. Appellant's objection therefore does not apply.

The inventory of the items seized pursuant to the warrant was admitted without objection. Quoting the inventory made at the time of the seizure, this is what was seized:

1 plastic pack of dried leaves/seeds from house no. 2

1 plastic pack of dried leaves/seeds from house no. 3

1 plastic pack of seeds from house no. 5

1 pack of cigarette contained [sic] seeds from house no. 1

1,429 marijuana plants from field

2 plastic packs of dried leaves from a drying house.

1 plastic pack of seedlings from house no. 7.

The trial court found that this was in the possession of the defendant and held "that the possession of such a large amount effectively establishes that the defendant was not holding it to use it himself, but in fact was intending to market or traffic in marijuana."

We conclude that the court was justified in making this inference as to the element of intent.

3. Identification of the defendant. At trial there was not an in court identification of the accused through witnesses pointing to or describing a person present. The defendant therefore contends that there is a failure of any proof as to the element of identification.

The government asked each of its first two witnesses an identical question, "Do you know the defendant Sebastian Kallop?" Each time the answer was, "Yes." These witnesses were policemen who participated in the search for marijuana at the defendant's property on June 14, 1988. The trial was September 20, 1988. The defendant was at his property on the day of the search. The first witness is the one who signed an inventory for the seized items, and a copy was left at the defendant's property.

The defendant rested without presenting any testimony. In his closing argument the defendant did not mention identification.

We conclude from this record that the court was justified in reaching the finding, beyond a reasonable doubt, that Sebastian Kallop is the one who committed the crime of trafficking.

Better practice dictates that identification be done by the witness pointing to or describing a person present in the courtroom. In all the circumstances of this case, however, we cannot find reversible error.

4. Matters Considered at Sentencing. The defendant contends that the court acted improperly in considering the 1980 marijuana cases. The first objection is that the court heard that the defendant was accused of possession of marijuana (27 plants), but the case had been dismissed. No reason was before the court as to the grounds for the dismissal.

We find this point of the defendant without merit because the record does not show that the sentencing judge considered the information at all. He hesitated to receive it, because the case had been dismissed, and after the information was given his reluctance continued. He said, "I don't know. I'd have to think that one through." Then in setting forth in some detail the basis of his sentence, the trial judge omitted entirely any mention of the dismissed case.

We thus do not need to reach the question of whether a dismissed case can be considered, since here the record leads to the conclusion that the case in question was not considered by the judge when he determined the proper sentence to impose.

The other 1980 case involved the plea agreement by which the defendant plead guilty of possession of marijuana, and the trafficking charge was dismissed. We find nothing improper in the sentencing judge here considering the factors which would show trafficking in that case. The defendant made no effort to contradict the information as to the quantity or the trade of marijuana for a radio.

The authority of a sentencing judge to make a broad inquiry into the background of a defendant is very clear. Specifically the court may consider even cases of which the defendant was accused but not convicted. United States v. Bowdach, [1977] USCA5 2009; 561 F.2d 1160, 1175 (5th Cir. 1977).

Lastly the defendant contends that the sentencing judge found, and considered in sentencing, that the defendant had been farming marijuana since 1983. The record does not support this assertion. The judge first referred to the presentence report which stated that the defendant had left his employment as a school teacher in 1983 to become a full time farmer. The court then made the statement, "That suggests that your work now is that of a farmer, and it suggests that what you're farming is marijuana" (emphasis added).

The statement is made in the context of what appears in the presentence report and of the finding of trafficking based on the seizure of June 14, 1988. We find no merit in the defendant's contention that the court was making a finding that since 1983 the defendant was farming marijuana.

We have considered the defendant's contention that the record does not establish that the crime occurred within the Federated States of Micronesia, and find it without merit.

For the reasons stated the judgment is affirmed.

So ordered the 1st day of November, 1989.